The judge stressing the primacy of European law, found that sections of Ireland’s retention laws contravene EU law and findings of the European Court of Human Rights.

Graham Dwyer. Pic: Collins Courts

The declarations will be formalised at a later date and will refer to telephony data only.

As well as being an important ruling in respect to Dwyer’s appeal the State had argued the action also had major implications in relation to the authorities’ ability to retain, access and use information generated by mobile phones in the investigation of serious criminal activities.

Dwyer, who was not present in court for the ruling, will now use the High Court’s findings as part of his appeal against his conviction.

However, an appeal by the State defendant’s against today’s decision is understood to be under consideration.

In his action Dwyer, who denies killing Ms O’Hara, claimed that data gathered from his phone, under the 2011 Communications (Retention of Data) Act, should not have been used at his 2015 trial before the Central Criminal Court.

The data, which was generated by Dwyer’s work phone, placed the phone at specific places at particular times and dates.

That data was used to link Dwyer to another mobile phone the prosecution told the jury during his high profile trial that he acquired and used to contact Ms O’Hara, whom he had an affair with.

The use of the data, Dwyer claimed, was unconstitutional and breached his rights under the EU Charter and the European Convention on Human Rights, including his right to privacy.

Dwyer’s lawyers argued the Act was introduced to give effect to a 2006 EU directive concerning the retention and use of data.

The European Court of Justice (ECJ) found in 2014 that the directive was invalid and that position was further strengthened in subsequent rulings by that court in 2016.

He claimed the 2011 Act suffers from the same flaws identified by the ECJ.

The State opposed his arguments and said Dwyer’s application was misconceived and should be dismissed.

It also argued that Dwyer cannot escape the fact his application to exclude evidence generated by his mobile telephone from the jury at his 2015 trial was rejected by the judge presiding over his trial.

It further argued the laws that allow the authorities to access and utilise retained data, which Dwyer seeks to have struck down, are extremely important in the detection, prevention and investigation of serious crime, including cybercrime, organised crime gangs, murder and terrorism.

Evidence in what was a highly complex case which raised points of law that had never been argued before the Irish superior courts commenced in February.

File photo

While the bulk of evidence and submissions in the case concluded in March the matter was adjourned from time to time to allow for submissions on recent relevant decisions from the European Court of Justice and the European Court of Human Rights concerning issues raised in the case.

In his ruling the Judge said he was satisfied that the 2011 Act provides for an indiscriminate retention regime.

The European Court of Justice , the judge said, had found that such regimes are prohibited under Articles 7 and 8 of the European Charter.

The Judge, noting the primacy of EU laws, said the European Court had found that the fighting of serious crime cannot justify the general and indiscriminate retention regime.

The Judge added that practices of how Garda apply for and obtain mobile phone data was not enough to satisfy the decisions of the European Courts in regards to access.

The judge also held that the declarations could not be prospective as the state had argued and could not be suspended to allow the legislature time to enact any new law.

Dwyer he said is entitled to certain declarations which are to be formally agreed by the parties and will be limited to telephony data and will exclude any effect on the security of the state and the saving of human life.

Quick Q&A:

1. Does it mean GD’s conviction is overturned? No. That’s a matter for the Court of Appeal.

2. Will the Court of Appeal do so? Probably not. There are exceptions for evidence gathered lawfully at the time, which becomes unlawful due to “subsequent legal developments” https://t.co/Cjqd9Nq4J7

It was not necessary to consider the constitutionality of the various sections of the 2011 Act because Dwyer had obtained effective relief in the form of certain declarations, the Judge added.

However, the Judge said that it did not automatically follow that telephony data retained and accessed contrary to EU law used by the prosecution in Dwyer’s trial will lead to the quashing of his conviction.

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